Citation Nr: 0517666
Decision Date: 06/29/05 Archive Date: 07/07/05
DOCKET NO. 03-21 625 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to an increased evaluation for residuals of a
gun-shot wound, with fractured left tibia and injury to
Muscle Group XII, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jason R. Davitian, Counsel
INTRODUCTION
The veteran served on active duty from November to December
1941, in July 1942, and from December 1944 to May 1946.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a December 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Manila, the Republic of the Philippines (RO), which denied
the benefit sought on appeal.
In correspondence received in May 2003, the veteran's service
representative asserted that a May 1949 rating decision
committed clear and unmistakable error. Although a June 2003
Statement of the Case (SOC) addressed this claim
peripherally, VA has not issued a rating decision with
respect to it. The Board refers this claim to the RO for
proper development.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The competent medical evidence shows that the veteran's
residuals of a gun-shot wound, with fractured left tibia and
injury to Muscle Group XII, constitute a severe disability.
3. The competent medical evidence shows that the veteran's
residual scar does not result in additional functional
impairment.
CONCLUSION OF LAW
The criteria for a 30 percent evaluation for residuals of a
gun-shot wound, with fractured left tibia and injury to
Muscle Group XII, have been met. 38 U.S.C.A. §§ 1155, 5102,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7,
4.10, 4.40, 4.45, 4.59, 4.73, Diagnostic Code 5312 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
The Board observes that the Veterans Claims Assistance Act of
2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002), enhanced
the VA's duty to assist a claimant in developing facts
pertinent to his claim, and expanded the VA's duty to notify
the claimant and his representative, if any, concerning
certain aspects of claim development. VA promulgated
regulations that implement these statutory changes. See 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004).
Review of the claims folder reveals compliance with the VCAA.
The RO provided the appellant with the applicable laws and
regulations and gave notice as to the evidence needed to
substantiate his claim in the December 2002 rating decision
on appeal and the June 2003 statement of the case.
Additionally, the RO sent the veteran a letter in July 2002
that explained the notice and duty to assist provisions of
the VCAA, including the respective responsibilities of VA and
the veteran to identify and/or secure evidence; listed the
evidence; and asked the veteran to submit and authorize the
release of additional evidence. Accordingly, the Board finds
that the appellant has been afforded all notice required by
statute. See Quartuccio v. Principi, 16 Vet. App. 183
(2002).
With respect to the duty to assist, the RO has obtained all
available service medical records, VA treatment records and
private treatment records. See Charles v. Principi, 16 Vet.
App. 370 (2002). VA also conducted relevant VA medical
examinations. There is no indication from the claims folder
or allegation from the appellant that any relevant evidence
remains outstanding. Therefore, the Board finds that the
duty to assist is met. 38 U.S.C.A. § 5103A.
Finally, the Board observes that the veteran has had ample
opportunity to present evidence and argument in support of
his appeal. As he has received all required notice and
assistance, there is no indication that the Board's present
review of the claims will result in any prejudice to the
appellant. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
Analysis
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) found in 38 C.F.R. Part 4 (2004). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.
"Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating." 38 C.F.R. § 4.7.
Regarding musculoskeletal disabilities, the Board observes
that disability of the musculoskeletal system is primarily
the inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portrays the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. §§ 4.40, 4.45. See DeLuca v. Brown, 8
Vet. App. 202 (1995).
The RO has evaluated the veteran's residuals of a gun-shot
wound to the left leg pursuant to 38 C.F.R. § 4.73,
Diagnostic Code 5312 for injuries to Muscle Group XII
(anterior muscles of the leg). Functions of this muscle
group include dorsiflexion, extension of the toes, and
stabilization of the arch. This muscle group encompasses the
anterior muscles of the leg, including the tibialis anterior,
extensor digitorum longus, extensor hallucis longus, and
peroneus tertius muscles. Under this Code, a noncompensable
rating is assigned for a slight disability. For a moderate
disability, a 10 percent rating is warranted. Moderately
severe disability is rated 20 percent. A maximum 30 percent
rating is awarded when there is severe disability.
Diagnostic Code 5312.
For VA rating purposes, the cardinal signs and symptoms of
muscle disability are loss of power, weakness, lowered
threshold of fatigue, fatigue-pain, impairment of
coordination and uncertainty of movement. 38 C.F.R. §
4.56(d).
Under 38 C.F.R. § 4.56(d), disabilities resulting from muscle
injuries shall be classified as slight, moderate, moderately
severe or severe. Slight disability of muscles is
characterized by simple wound of muscle without debridement
or infection. Slight disability of muscle is reflected by
history and complaint such as service department records of a
superficial wound with brief treatment and return to duty.
Healing of slight muscle injuries is followed by good
functional results. Slight disability of muscles includes
none of the cardinal signs or symptoms of muscle disability
as defined in 38 C.F.R. 4.56 (c). Objective findings
characteristic of slight muscle disability include minimal
scarring, no evidence of fascial defect, atrophy, or impaired
tonus, no impairment of function, and no metallic fragments
retained in muscle tissue. 38 C.F.R. § 4.56 (d)(1).
Moderate disability of muscles is characterized by a through
and through or deep penetrating wound of short track from a
single bullet, small shell or shrapnel fragment, without the
explosive effect of a high velocity missile, residuals of
debridement, or prolonged infection. History and complaint
characteristic of moderate disability of muscle includes
service department records or other evidence of in-service
treatment for the wound. For a finding of moderate
disability of muscle, there should be record of consistent
complaint of one or more of the cardinal signs and symptoms
of muscle disability as defined in 38 C.F.R. § 4.56 (c),
particularly lowered threshold of fatigue after average use,
affecting the particular functions controlled by the injured
muscles. Objective findings characteristic of moderate
muscle disability include small or linear entrance and (if
present) exit scars, indicating a short track of the missile
through muscle tissue. For moderate muscle injury, there
should be some loss of deep fascia or muscle substance or
impairment of muscle tonus and loss of power or lowered
threshold of fatigue when compared to the sound side. 38
C.F.R. § 4.56(d)(2).
Moderately severe disability of muscles is characterized by a
through and through or deep penetrating wound by a small high
velocity missile or large low-velocity missile, with
debridement, prolonged infection, or sloughing of soft parts,
and intermuscular scarring. History and complaint
characteristic of moderately severe muscle injury includes
service department records or other evidence showing
hospitalization for a prolonged period for treatment of
wound. A showing of moderately severe muscle disability
should include a record of consistent complaints of cardinal
signs and symptoms of muscle disability as defined in 38
C.F.R. § 4.56(c) and, if present, evidence of inability to
keep up with work requirements. Objective findings
characteristic of moderately severe muscle disability include
entrance and (if present) exit scars indicating the track of
the missile through one or more muscle groups. Indications
on palpation of loss of deep fascia, muscle substance, or
normal firm resistance of muscles compared with the sound
side are also indicative of moderately severe muscle
disability. Tests of strength and endurance compared with
the sound side should demonstrate positive evidence of
impairment. 38 C.F.R. § 4.56(d)(3).
Severe disability of muscles is characterized by a through
and through or deep penetrating wound due to high-velocity
missile, or large or multiple low velocity missiles, or with
shattering bone fracture or open comminuted fracture with
extensive debridement, prolonged infection, or sloughing of
soft parts, intermuscular binding and scarring. History and
complaint characteristic of severe disability of muscle
includes service department record or other evidence showing
hospitalization for a prolonged period for treatment of
wound. Record of consistent complaint of cardinal signs and
symptoms of muscle disability as defined in 38 C.F.R. §
4.56(c), worse than those shown for moderately severe muscle
injuries, and, if present, evidence of inability to keep up
with work requirements. Objective findings characteristic of
severe muscle disability include ragged, depressed and
adherent scars indicating wide damage to muscle groups in
missile track. Palpation shows loss of deep fascia or muscle
substance, or soft flabby muscles in wound area. Muscles
swell and harden abnormally in contraction. Tests of
strength, endurance, or coordinated movements compared with
the corresponding muscles of the uninjured side indicate
severe impairment of function. If present, the following are
also signs of severe muscle disability: (A) X-ray evidence of
minute multiple scattered foreign bodies indicating
intermuscular trauma and explosive effect of the missile. (B)
Adhesion of scar to one of the long bones, scapula, pelvic
bones, sacrum or vertebrae, with epithelial sealing over the
bone rather than true skin covering in an area where bone is
normally protected by muscle. (C) Diminished muscle
excitability to pulsed electrical current in
electrodiagnostic tests. (D) Visible or measurable atrophy.
(E) Adaptive contraction of an opposing group of muscles. (F)
Atrophy of muscle groups not in the track of the missile,
particularly of the trapezius and serratus in wounds of the
shoulder girdle. (G) Induration or atrophy of an entire
muscle following simple piercing by a projectile. 38 C.F.R.
§ 4.56(d)(4).
The veteran's treating physician has submitted statements.
In a November 2002 statement, she provides that the veteran's
disability was gradually worsening and caused pain and
instability of the left leg.
VA outpatient treatment reports dated during the appeal
period show that the veteran complained of increasing pain
that was not helped by Tylenol. A December 2000 treatment
note provides that the veteran had stiffness, reduced
sensation and weakness of the leg and foot. He had no
control over the direction of the foot when walking. He felt
no sensation at all and had to be careful with his steps to
avoid falling. On observation, he walked with a cane and
stated that he would fall without it. He had a limp and his
steps appeared precise and guarded for fear of falling or
tripping. He appeared to have atrophy of the foot and leg.
There was reduced sensation to touch of the lower leg and
foot, reduced range of motion in all directions and a dropped
foot. The assessment was leg trauma and injury to muscle
left leg, with reduced sensation and no range of motion. The
plan was to order a neurological consultation.
The report of an April 2001 VA neurological consultation
provides that the veteran was having progressively more
difficulty with his gait and balance, definitely during the
last month and perhaps since 1992. The examiner noted that
without his cane, the veteran had decreased balance and
needed the examiner's help at times. He had minimal to no
movements of the left foot, dorsi and plantar flexion.
The report of a June 2001 VA orthopedic examination provides
that the veteran's left ankle was not tender. His gait was
normal. Dorsiflexion of the left ankle was to 10 degrees and
plantar flexion was to 55 degrees. The pertinent diagnosis
was mild degenerative joint disease of the left ankle.
The report of a June 2001 VA muscle examination provides that
the veteran complained of pain in the left leg. He had to
stop walking after 50 yards and could resume walking after
resting. There was a non-tender scar measuring 3 by 1 cm on
the anterior aspect of the middle of the left leg. It was
adherent to the tibia. Muscle Group XII of the left leg
measured 30 cm. The right calf measured 31 cm. Muscle
strength was normal and there was no loss of muscle function.
The diagnosis was injury Muscle Group XII, left; Healed
fracture left tibia.
The report of a June 2001 VA skin examination provides that
the veteran had two (sic?) scars on the middle of the left
leg that measured 3 by 1 cm. There was adherence with no
ulceration or breakdown of the skin, limitation of function,
tenderness or disfigurement. The texture was smooth and the
scar was slightly depressed. The diagnosis was scar, gun-
shot wound, left leg.
A July 2001 VA progress note shows that the veteran stated
that Tylenol did not help to relieve pain for more than 30
minutes. He was prescribed Darvocet.
A December 2001 VA progress note provides that the veteran
complained of weakness, fatigue and pain of the left leg.
The pertinent diagnosis was chronic leg pains from trauma,
DJD? He was advised to avoid walking long distances and to
walk slowly.
A November 2002 VA progress note provides that the veteran
complained of pain in the left leg, that he described as an 8
out of 10. He took Tylenol daily and used an analgesic balm.
The pain occurred off and on. When severe, it radiated up
his leg and head and caused headaches and blurry vision.
The report of November 2002 VA bone examination provides that
the veteran had a well healed scar overlying the left tibia
with irregularities of (unclear) surface. The veteran's gait
was normal and he had been using a cane since 1945. The
diagnosis was healed fracture, left tibia.
The report of a November 2002 VA muscle examination provides
that the veteran had a non-tender 3 by 4 cm shrapnel scar
overlying the middle of the left tibia. It was adherent to
deeper structures. Muscle strength was normal. The
diagnosis was residuals of gun-shot wound Muscle Group XII.
Based on a thorough review of the record, the Board finds
that the evidence supports a 30 percent evaluation for
residuals of a gun-shot wound, with fractured left tibia and
injury to Muscle Group XII. The Board finds that the
veteran's pain that required medication stronger than
Tylenol; the stiffness, reduced sensation and weakness of the
leg and foot; his lack of control over the direction of the
foot when walking; his limp when walking; the atrophy of the
foot and leg; and the minimal to no movements of the left
foot, dorsi and plantar flexion are evidence that his
service-connected disability results in severe disability.
Diagnostic Code 5312; 38 C.F.R. § 4.56(d)(4).
Diagnostic Code 5312 does not provide an evaluation in excess
of 30 percent. Where a veteran is at the maximum for
limitation of motion, the provisions of DeLuca, supra, do not
apply. Johnston v. Brown, 10 Vet. App. 80, 85 (1997).
The Board recognizes that the veteran has a residual scar
from the gun-shot wound. In general evaluation of the same
disability or the same manifestations of disability under
multiple diagnoses (i.e., pyramiding) is to be avoided. 38
C.F.R. § 4.14 (2004); see Esteban v. Brown, 6 Vet. App. 259
(1994). The critical inquiry in making such a determination
is whether any of the disabling symptomatology is duplicative
or overlapping. The claimant is entitled to a combined
rating where the symptomatology is distinct and separate.
Esteban, supra.
Effective August 30, 2002, the VA revised the criteria for
evaluating skin disabilities. 67 Fed. Reg. 49590-49599
(2002). The RO has not provided the veteran either the old
or the revised rating criteria for scars. However, VA
examiners have described the veteran's scar as well-healed
and non-tender, and without ulceration or breakdown of the
skin, limitation of function, tenderness or disfigurement.
There is no evidence that the veteran's scar results in
additional functional impairment that would warrant
additional compensation. 38 C.F.R. § 4.118 (prior to August
30, 2002); 38 C.F.R. § 4.118 (2004). Thus, the RO's failure
to provide the veteran the pertinent rating criteria is
harmless error.
ORDER
A 30 percent evaluation for residuals of a gun-shot wound,
with fractured left tibia and injury to Muscle Group XII, is
granted, subject to the law and regulations governing the
payment of monetary benefits.
____________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs